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Jerry Cobb v. Rick Hill

November 8, 2011

JERRY COBB,
PETITIONER,
v.
RICK HILL, WARDEN
RESPONDENT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) GRANTING IN PART MOTION

FOR RECONSIDERATION, [Doc. No. 17]; (2) ADOPTING REPORT AND RECOMMENDATION, [Doc. No. 15]; DISMISS, [Doc. No. 14]; and (3) GRANTING MOTION TO (4) DENYING and DISMISSING PETITION FOR HABEAS CORPUS.

Currently before the Court is Jerry Cobb ("Petitioner")'s First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. [Doc. No. 8.] Petitioner was convicted by jury of second degree murder, attempted murder, and assault with a semi-automatic firearm. He was sentenced to fifteen years to life on the murder conviction and a four year term was added for the personal use of a firearm. Petitioner argues that Section 1168 of the California Penal Code, which was used to sentence him to an indeterminate term, violates the Separation of Powers Doctrine because it eliminates judicial discretion during sentencing. He also argues that § 1168 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Respondent filed a Motion to Dismiss, asserting that the First Amended Petition was barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), and lodged the relevant portions of the state record. [Doc. No. 14.] The Court referred the matter to Magistrate Judge Jan M. Adler, who issued a Report and Recommendation ("R&R") recommending the Court grant the Motion to Dismiss and dismiss with prejudice the First Amended Petition. [Doc. No. 15.] Petitioner subsequently filed his objections to the R&R and a Motion for Reconsideration. [Doc. Nos. 16, 17, 18.]

Having considered the R&R as well as Petitioner's objections and Motion for Reconsideration, the Court hereby: (1) GRANTS IN PART Petitioner's Motion for Reconsideration; (2) ADOPTS the R&R; (3) GRANTS Respondent's Motion to Dismiss; and (4) DENIES and DISMISSES WITH PREJUDICE the First Amended Petition.

BACKGROUND

The Court adopts the Magistrate Judge's factual and procedural background as it relates to Petitioner's state court proceedings. (See R&R, at 1-2.)

Petitioner filed his First Amended Petition on May 11, 2011. [Doc. No. 8.] The Court subsequently granted Petitioner leave to proceed in forma pauperis but denied without prejudice his request for appointment of counsel. [Doc. Nos. 11, 13.] On July 8, 2011, Respondent filed his Motion to Dismiss. [Doc. No. 14.] Petitioner did not file an opposition to the Motion to Dismiss. On September 7, 2011, the Magistrate Judge issued the R&R recommending that the Court grant the Motion to Dismiss and dismiss with prejudice the First Amended Petition. [Doc. No. 15.]

On September 21, 2011, Petitioner constructively filed his objections to the R&R and a Motion for Reconsideration.*fn1 [Doc. Nos. 16, 17.] In his Motion for Reconsideration, Petitioner asserts that on July 24, 2011, he timely filed his Opposition to Motion to Dismiss by personally giving it to the on-duty correctional officer responsible for legal mail at the prison. (Motion for Reconsideration, at 2 [Doc. No. 17].) Petitioner asserts that he does not know why his opposition was never received by the Court. He attaches a copy of his Opposition to Motion to Dismiss to his Motion for Reconsideration, [see Doc. No. 18], and asserts that it is an "exact replica" to the one that he filed on July 24, 2011. (Motion for Reconsideration, at 4.)

DISCUSSION

The Court reviews de novo those portions of the R&R to which objections are made. 28 U.S.C. § 636(b)(1). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

I. Report and Recommendation

The Magistrate Judge determined that the First Amended Petition was time-barred under the AEDPA statute of limitations. See 28 U.S.C. § 2244(d)(1) ("A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court."). The statute of limitations began to run from the date Petitioner's judgment of conviction became final. See id. § 2244(d)(1)(A). In this case, that was September 9, 1996-when Petitioner's time for seeking review by the California Supreme Court expired. See Cal. R. Ct. 8.264(b)(1), 8.500; Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007).

Because Petitioner did not begin to seek collateral relief until he filed his first state habeas petition on April 15, 1998, the Magistrate Judge determined that statutory tolling provided by 28 U.S.C. § 2244(d)(2) did not apply. See Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (concluding that the one-year limitations period for filing federal habeas petition could not be tolled by state habeas petitions, where initial state petition was not filed until after the limitations period for filing the federal petition had expired); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (same). The Magistrate Judge also determined that Petitioner failed to demonstrate that he was entitled to equitable tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (noting that to be entitled to equitable tolling, a litigant must show "(1) that he has been ...


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